Update: AB 1266 Referendum Fails

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March 3, 2014 Efforts to repeal the "transgender bill", AB 1266 (Education Code § 221.5,) have failed. On February 24, the California Secretary of State announced that the referendum was not supported by the requisite number of signatures.

By way of reminder, effective January 1, 2014, AB 1266 establishes that it is the policy of the state that school classes be conducted without regard to the gender of the pupil enrolled in these classes. It goes on to further require that students be able to "participate in sex-segregated school programs and activities, and use facilities consistent with his or her gender identity, irrespective of the gender listed in the pupil's records."

Existing federal and state civil rights laws applicable to public schools--including charter schools--already cover the requirements of the new law, which is aimed specifically at issues affecting transgender students. Nonetheless, the law offers no guidance on how to implement these requirements.

We suggest charter schools review the recent closure letter and resolution agreement between the Arcadia Unified School District and the US Department of Education, Office of Civil Rights, and the Department of Justice for guidance on how to develop policies to address the enrollment of students whose gender identity differs from their assigned gender. We also advise you to consult with legal counsel when your school becomes aware of a transgender student.

Some portions of AB 1266 are explicitly applicable only to school districts. Nonetheless, charter schools are already subject to these requirements pursuant to Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964. In particular, under the new law, school districts generally may not prohibit a student from enrolling in any class based on the student's sex. (§ 221.5(b).) Additionally, school districts may not require a student of one sex to enroll in a particular class unless the same class is also required for students the opposite sex. (§ 221.5(c).)